¹ Fox, Harold G., Monopolies and Patents: A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947), p. 178.Google Scholar

² Ibid., pp. 200, 204, 206.

³ “It is probable enough that the patent laws will be abolished ere long ….”—The Economist, June 5, 1869, p. 656.Google Scholar

⁴ Hulme, E. Wyndham, “The History of the Patent System under the Prerogative and at Common Law,” Law Quarterly Review, XII (1896), 141.Google Scholar

⁵ An American writer in the Revue de droit international et de législation comparée, I (1869), 311, had the impression that “l'Angleterrc paraît s'acheminer vers une abolition compléte de ce systéme.” He added that the United States would never permit itself to fall behind other nations “in a matter of liberty”; if other countries should take the lead in the abolition of patent protection, the United States would surely follow suit.

⁶ In 1850 the Berliner Polytechnische Gesellschaft submitted a draft for a patent law giving inventors rights they had not before enjoyed, especially by making the patent grant mandatory rather than discretionary for the government See Pilenko, A., Das Recht des Erfinders (Berlin: Heymann, 1907), p. 96.Google Scholar

⁷ John Prince-Smith, “Ueber Patente für Erfindungen,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, Erster Jahrgang (1863), III, 150. Also Grothe, Herman, Das Patentgesets für das Deutsche Reich (Berlin, 1877), p. 7.Google Scholar

⁸ At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted “by an overwhelming majority”: “Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare.”— Translated from “Bericht über die Verhandlungen des sechsten Kongresses deutscher Volkswirthe zu Dresden am 14., 15., 16. und 17. September,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, Erster Jahrgang (1863), III, 221.Google Scholar

⁹ Bolley, and Kronauer, , Gutachten über den Einfluss des Mangels eines Patentgesetzes auf die schweizerische Industrie (Zurich, 1862). The authors were professors of chemical and mechanical technology, respectively.Google Scholar

¹⁰ Offizielles Bundesblatt. Jahrgang (1864), II, 510–11.Google Scholar

¹¹ At the International Congress for Tariff Reform in Brussels, 1856, Professor Akersdyck of the University of Utrecht stated that after abolishing the barriers to free trade one should now turn to removing the fetters by which the patents have shackled the freedom of labor. Cf. Rolin-Jacquemyns, G., “De quelques manifestations récentes de l'opinion publique en Europe au sujet des brevets d'invention,” Revue de droit international et de législation comparée, I (1869), 605.Google Scholar

¹² Mr. Godefroi, leading member of the Liberal party, stated during the debate in the Dutch Parliament: “I am thoroughly persuaded that a good law of patents is an impossibility.”—Quoted in the British House of Commons Sessional Papers, LXI, doc. 41 (February 16, 1870).

¹³ See Grothe, Das Patentgesetz, pp. 7–49; Pilenko, Das Recht des Erfinders, pp. 96 ff.;and others.

¹⁴ Representative Ackermann, opening the debate on the patent bill in the German Reichstag on March 2, 1877, stated that “thanks to the bad crisis” public opinion had turned away from “the pernicious theory of the dominating school” teaching the “principles of free competition and free trade.”—Grothe, Das Patentgesetz, p. 52.

¹⁵ Botschaft des Bundesrathes an die Bundesversammlung betreffend Forderung der Land-writhschaft, Industrie und Gewerbe, und Schutz des gewerblichen Eigenthums, June 1, 1886, p. 5.

¹⁶ Guyer, E., Einführung in das Schweizerische Erfindungsrecht (Zurich: Fachschriften-Verlag, 1916), p. 14.Google Scholar

¹⁷ Moorrees, W., Het Octrooirecht (Sgravenhage: Mouton, 1912), I, 313, 359.Google Scholar

¹⁸ Jeremy Bentham, “Observation on Parts of the Declaration of Rights, as Proposed by Citizen Sieyes.” First published in French, republished from the English MS. in The Works of Jeremy Bentham, ed. John Bowring (Edinburgh, 1843), II, 533.

¹⁹ Smith, Adam, Wealth of Nations (“World's Classics”; London: Oxford University Press, 1928), Bk. IV, chap, vii, Pan III, 244 (first published, 1776).Google Scholar

²⁰ Ibid., Bk. V, chap, i, Part III, 388.

²¹ Mill, John Stuart, Principles of Political Economy, ed. Ashley, W. J. (London: Longmans, Green & Co., 1909), Bk. V, chap, x, 932 (first published, 1848).Google Scholar

²² Heinrich, Johannvon Justi, Gottlobs, Staatswirthschaft oder systematische Abhandlung aller oekonomischen und Cameral-Wissenschaften, die zur Regierung eines Landes erfodert werden (2d ed.; Leipzig, 1758), I, 209; II, 613.Google Scholar

²³ Jakob, Ludwig Heinrich, Grundsätze der Polizeigesetzgebung und der Polizeianstalten (2d ed.; Halle, 1837), p. 375 (first published, 1809).Google Scholar

²⁴ Friedrich, JohannLotz, Eusebius, Handbuch der Staatswirthschaftslehre (Erlangen, 1822), II, 118.Google Scholar

²⁵ Karl Heinrich Rau, Grundsätze der Volkswirthschaftspolitik, Lehrbuch der politischen Oekonomie (3d ed.; Heidelberg, 1844), II, 362.

²⁶ Jean Baptiste Say, Traité d'économie politique (1st ed.; Paris, 1803), p. 263. This passage does not appear in some later editions.

²⁷ de Sismondi, J.-C.-L. Simonde, Nouveaux principes d'économie politique ou de la richesse dans set rapport avec la population (2d ed.; Paris, 1827), II, 334–35.Google Scholar

²⁸ Proudhon, Pierre-Joseph, Les Majorats littéraires (“Complete Works”; Paris, 1868), Vol. XVI.Google Scholar

²⁹ Proudhon, Pierre-Joseph, Système des contradictions économiques ou la philosophie de lamisère (2d ed.; Paris, 1850), I, 235–42 (first published, 1846).Google Scholar

³⁰ Jobard, J.-B.-A.-M., Nouvelle économie sociale ou monautopole industriel, artistique, commercial et littéraire (Paris, 1844), pp. 5, 130, 239, et passim.Google Scholar

³¹ Chevalier, Michel, Les Brevets d'inventions dans leur relations au principe de la liberté de travail et de l'égalité (Paris, 1878), p. 38.Google Scholar

³² Most authoritative support came from John Stuart Mill: “I have seen with real alarm several recent attempts, in quarters carrying some authority, to impugn the principle of patents altogether; attempts which, if practically successful, would enthrone free stealing under the prostituted name of free trade, and make the men of brains, still more than at present, the needy retainers and dependents of the men of money-bags.”—Mill, Principles of Political Economy, P. 932.

³³ Law of January 7, 1791, in Schuller, Anton, Handbuch der Gesetze über ausschliessende Privilegien auf neue Erfindungen, Entdeckungen und Verbesserungen im Gebiete der Industrie (Vienna, 1843).Google Scholar

³⁴ “There are still today, even among the clearest thinkers, some who do not see and do not comprehend property unless it is right before their eyes in the material form of a piece of land or a house.”—Blanc, Etienne, “Introduction,” in Blanc, E. and Beaume, A., Code général de la propriété industrielle. littéraire et artistique (Paris, 1854).Google Scholar A large number of French economists, including Frederic Passy, V. Modeste, J. Simon, and Joseph Garnier, refused to admit a logical difference between property in things material and in ideas. A Belgian writer put this thesis right into the title of his article. See de Beaulieu, C. Le Hardy, “La Propriété des inventions est un propriété comme une autre,” Journal des économistes, XII (3d Ser.) (1868), 251–59.Google Scholar

³⁵ This was one of the main arguments Stanislas de Bouftler used in presenting the patent bill to the Constitutional Assembly in December 1790: “If there is for man any genuine property it is thought, … and the tree which grows on a field does not so incontrovertibly belong to the owner of the field as the idea which springs from a man's mind belongs to its author. Invention, the source of the arts, is also the source of property: it is primary property, while all other property is merely conventional ….”—Renouard, Augustin-Charles, Traité des brevets d'invention (3d ed.; Paris, 1865), pp. 89–90Google Scholar (first published, 1825). Among British economists who accepted this doctrine were Macleod and McCulloch: “Just as the mind of man is admitted to be of a much higher nature than his body, so is the service rendered to his mind of a much higher nature than one rendered to his body. Hence, ideas are much loftier species of property than material wealth.”—Macleod, Henry Dunning, The Elements of Political Economy (London, 1858), p. 181.Google Scholar “Of all the species of property a man can possess, the fruits of his mental labours seem to be most peculiarly his own.”—McCulloch, J. R., “Book, Books,” Dictionary, Practical, Theoretical and Historical, of Commerce and Commercial Navigation (2d ed.; London, 1836), p. 139.Google Scholar

³⁶ See, for example, Charles, F.Comte, L., Traité de la propriété (Paris, 1834), II, 28ff. The concept of property and the possibility or impossibility of its application to purely intellectual products had been previously examined by Kant and other philosophers in connection with the controversy about “literary property.”Google Scholar

³⁷ See, for example, Proudhon, Les Majorats littéraires, chap. i.

³⁸ For example, Krauss, A., Geist der österreichischen Gesetzgebung zur Aufmunterung der Erfindungen (Vienna, 1838), pp. 7–20Google Scholar; and, Webster, Thomas, “Patent Law” (an abstract of proceedings), Transactions of the National Association for the Promotion of Social Science, 1862 (London, 1863), p. 885.Google Scholar

³⁹ The French economist, Coquelin, for example, speaks of “that strange confusion of thought which puts on the same level an invention … the peculiar characteristic of which is that it can be disseminated through many minds and can be exploited in a hundred different places at the same time—with a material object, necessarily circumscribed, which, because it cannot be divided, can only be possessed by one man and which cannot be usefully exploited except where it is ….”—Coquelin, Charles, “Brevets d'invention,” Dictionaire de l'économie politique (Paris, 1873), p. 217.Google Scholar

⁴⁰ “Property in ideas, once published, is an insoluble contradiction.” He who complains about the “theft” of his idea “complains that something has been stolen which he still possesses, and he wants back something which, if given to him a thousand times, would add nothing to his possession.”—Rentzsch, Hermann, “Geistiges Eigenthum,” Handwörterbuch der Volkswirtschaft (Leipzig, 1866), pp. 333–34.Google Scholar

⁴¹ Schäffle, Albert E. F., Die nationalökonomische Theorie der ausschliessenden Absatzverhältnisse (Tübingen, 1867), pp. 113–14.Google Scholar

⁴² Rodriguez, G., in C. Le Hardy de Beaulieu, “Discussion sur la propriété des inventions,” Journal des économistes, XXXIV (2d Ser.) (1862), 81. (Italics in the original.)Google Scholar

⁴³ Chevalier, Michel, in session of June 5, 1869, Annales de la Société d'Economie Politique (Paris: Guillaumin, 1895), VIII, 114.Google Scholar

⁴⁴ Klostermann, Rudolf, Das geistige Eigentum an Schriften, Kunstwerken und Erfindungen nach Preussischem und internationalen Rcchte (Berlin, 1867, 1869), 2 vols.Google Scholar

⁴⁵ Michaelis, Otto, “Zur Selbstkritik des Patentschutzes,” Vierteljahrschrift für Volkswirtschaft und Kulturgeschichte, Siebenter Jahrgang (1870), XXIX, 100–21, esp. 108.Google Scholar

⁴⁶ Macleod, Elements of Political Economy, p. 182.

⁴⁷ Wirth, Max, in “Bericht über die Verhandlungen des sechsten Kongresses deutscber Volkswirthe zu Dresden am 14., 15., 16. und 17. September,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, Erster Jahrgang (1863), III, 222. Max Wirth, an economist on the editorial board of that journal, must not be confused with Franz Wirth, patent lawyer and author of several books on patent laws and its reform, or with Richard Wirth, another writer on the legal side of the subject.Google Scholar

⁴⁸ Böhmert, Viktor, “Die Erfindungspatente nach volkswirtschaftlichen Grundsätzen und industriellen Erfahrungen; mit besonderer Rücksicht auf England und die Schweiz,” Vierteljahrschrift für Volkswirtschaft und Kulturgeschichte, Siebenter Jahrgang (1869), XXV, 80.Google Scholar

⁴⁹ Chevalier, Michel, Introduction to Rapports du jury français sur l'exposition universelle de 1862 (Paris, 1862).Google Scholar

⁵⁰ Robert Andrew Macfie published several books (at least five) and made innumerable speeches on the subject before national and international conferences and in the House of Commons. One of his critics, irked by his opposition to patents, stated that Macfie's experiences as a sugar manufacturer, president of the Liverpool Chamber of Commerce, and member of Parliament did not qualify him to pronounce upon patent theory.—See “The Patent Laws,” Westminster Review, XXVI (N.S.) (October 1864), 329. Another critic, however, remarked that Macfie's views were obviously those of “a theorist rather than a practical man.”—See Transactions of the National Association for the Promotion of Social Science, 1862 (London, 1863), p. 885.Google Scholar

⁵¹ Macfie, R. A., The Patent Question under Free Trade (2d ed.; London, 1864), p. 8.Google Scholar

⁵² “By a perfectly independent train of thought, another person may have discovered simultaneously exactly the same utility, but he has been last in the race [for the patent] and he must forego his natural privilege of labour ….”—Rogers, J. E. T., “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London, XXVI (1863), 125.Google Scholar

⁵³ Coquelin, “Brevets d'invention,” Dictionaire de l'économie politique, 218.

⁵⁴ The Economist (London), December 28, 1850, p. 1434. In a similar vein, T.-N. Bénard stated that to abolish patents was “not a question of expropriating the inventor, but rather of preventing the expropriation of the whole society, which in its heritage possesses all the elements used by the inventors.”—Annales de la Société d'Economie Politique (Paris: Guillaumin, 1895), VIII (1869–70), 103–4.Google Scholar

⁵⁵ Prince-Smith, “Ueber Patente für Erfindungen,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, II, 157.

⁵⁶ Ibid., III, 161.

⁵⁷ “The law may give him [the patentce] a property, as the law may allow any other privilege which invades the liberty of other men; but his right has a factitious and not a natural origin ….”—Rogers, , “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London, XXVI (1863), 125.Google Scholar A similar thought was expressed by the Frenchman, Paul Coq, who however accepted the rights of writers and artists as natural property: “One must not confuse the property right which springs from the creation of a work of art or literature with the factitious property which is decreed for the profit of industry.”—Annales de la Société d'Economic Politique, VIII (1869–70), 110.

⁵⁸ It should be clear that “a property right in a right is nothing else but the right itself.”—Jolly, Julius, Die Lehre vom Nachdruck. (Heidelberg, 1852), p. 69. To speak of “property in a right” is certainly not the same as to say that “this right is a property right.”Google Scholar

⁵⁹ Rentzsch, “Geistiges Eigenthum, Handwörterbuch der Volkswirtschaft, p. 335.

⁶⁰ In a speech in May 1791, defending the patent law in the Assembly, De Bouffler referred to critics who “use the expression of exclusive privilege in preference to other expressions which would be just as correct but less odious.”—Renouard, Traité det brevets d'invention, p. 103. Renouard mentioned that “the necessity of recognizing a privilege visibly embarrassed the reporter; he hardly dared to admit that he proposed a privilege, and that certain privileges were equitable.”—Ibid., p. 89. The same strategy was repeated in 1843, when the French Chambers considered a new patent law. But by this time the government felt that the property theory was unnecessary, and its bill did not contain any reference to the inventor's property right in his idea. Vicomte Dubouchage, in the Upper Chamber, appealed to the members to insert the omitted word, “property,” in the text of the bill: “To insert the word property is not a matter of indifference, because words may have great influence upon minds, …, the ordinary person will respect the invention of his neighbor if he is convinced that it is property, if the law proclaims it so. But if the law is silent on this point, if on the contrary, one calls it a privilege, in an age when these are detested in France, if one says that it is a monopoly, then indeed, this true property … will not be respected by the envious, who will say: it is a monopoly, let's do away with it.”—Chambre des Pairs, séance du 24 Mars, 1843: Le Moniteur universel, No. 84, March 25, 1843, p. 542. The appeal of the Vicomte was in vain. The French Patent Law of 1844 omitted the word.

⁶¹ One of the defenders of patents in Germany wrote in 1877, in the year of the victory of his group: “It is interesting to observe that the advocates of the patent system in Germany, correctly understanding that this theoretical, and sophistic debate [about the so-called ‘property in ideas'] was absolutely sterile, did not go much into this question and, if so, only to refute the crassest absurdities in the theorizing of the anti-patent people.”—Grothe, Das Patentgesetz, p. 4. As a matter of fact, the chief draftsman of the German patent law emphasized that “property rights are … inseparably linked with material things.”—See F. Bitzer, Vorschläge für ein deutsches Patentgesetz (Stuttgart, 1864), p. 122. On the other hand, French lawyers clung to the property construction. At an international congress in 1878 in Paris, they were able to obtain acceptance of the following resolution: ‘The right of inventors … is a property right; statutory law does not create it, but merely regulates it.”—“Le Congrès International de la Propriété Industrielle, tenu à Paris en Septembre 1878,” Journal des economistes, IV (4th Ser.) (1878), 89.Google Scholar

⁶² “The inventor has, as other men, the right to live by his work, the results of which are so profitable to all. The products of his invention ought to be his to exchange freely, sheltered from harmful and ruinous competition, receiving a price in proportion to their utility and the value of the satisfaction they give to those who use them.”—Renouard, Traité des brevets d'invention, p. 11.

⁶³ Mill, Principles of Political Economy, p. 932.

⁶⁴ Cited disapprovingly by Roscher, Wilhelm, System der Volkswirtschaft (“Nationalökonomik des Handels und Gewerbefleisses”; Stuttgart, 1881), III, 758.Google Scholar

⁶⁵ John Lewis Ricardo, author of History and Anatomy of Navigation Laws, was a nephew of David Ricardo. He was president of a London bank and a member of Parliament. Until his death in 1862 he was, according to Macfie, the “principal advocate of reform or abolition of the patent system” in the House of Commons.

⁶⁶ Reporting on the hearings of the Select Committee and on the testimony offered by Ricardo, The Economist wrote: “… nearly all useful inventions depend less on any individual than on the progress of society. A want is felt …, ingenuity is directed to supply it; and the consequence is, that a great number of suggestions or inventions of a similar kind come to light. ‘The ideas of men’, said Mr. Ricardo, ‘are set in motion by exactly the same circumstances’. So we find continually a great number of similar patents taken out about the same time. Thus the want suggests the invention, and though the State should not reward him who might be lucky enough to be the first to hit on the thing required, the want growing from society, and not from the individual or from the Government, would most certainly produce the required means of gratifying it ….”—The Economist, July 26,1851, p. 812.

⁶⁷ Schäffle, Die nationalökonomische Theorie, p. 141.

⁶⁸ Ibid., p. 150.

⁶⁹ The Economist, July 26, 1851, p. 812.

⁷⁰ Quoted in Macfie, R. A., ed., Recent Discussions on the Abolition of Patents for Inventions in the United Kingdom, France, Germany, and the Netherlands (London, 1869), p. viiiGoogle Scholar. Mr. Rogers, however, was not in favor of governmental bonus systems either.—Rogers, “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London, XXVI (1863), 127.Google Scholar

⁷¹ Prince-Smith, , “Ueber Patente für Erfindungen,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, Erster Jahrgang (1863), III, 161.Google Scholar

⁷² See, especially, Macfie, The Patent Question under Free Trade, p. 24; and Böhmert, Viktor, “Gründung eines Vereins zum Ersatz der Erfindungspatente und zur Belohnung unpatentirter Erfindungen in Zürich,” Jahrbücher für Nationalökonomie und Statistik, IX (1867), 93.Google Scholar

⁷³ Jeremy Bentham, “A Manual of Political Economy,” Works, ed. Bowring, III, 71 (date first published uncertain).

⁷⁴ Mill, Principles of Political Economy, p. 932.

⁷⁵ For example, the French economist, Louis Wolowski, declared that “after thorough examination it was recognized that the most equitable reward consisted in the temporary grant of exclusive rights.”—Annales de la Société d'Economie Politique, VIII (1869–70), 125.

⁷⁶ Speech of the Right Hon. Lord Stanley, M.P., House of Commons, May 28, 1868. Reproduced in Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions, p. 111.

⁷⁷ “… the practical failure of the law to secure a reward to the inventor and the frequent disproportion between the reward and the service rendered … are points of no consequence so long as the public is generally a gainer by the law.”—The Economist, June 5, 1869, p. 657. The editorial went on to say that the public was a heavy loser.

⁷⁸ “German industry undoubtedly owes its present prosperous condition also to the fact that only a few patents have been granted in Germany ….”—Böhmert, Die Erfindungspatente, p. 48. Böhmert also suggested that England developed industrially in spite of her patent system but less than she would have without it.—Ibid., p. 79.

⁷⁹ Rogers, “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London, XXVI (1863), 129.

⁸⁰ Rentzsch, “Geistiges Eigenthum,” Handwörterbuch der Volkswirtschaft, p. 634; also several British experts, whose opinions are criticized in the Westminster Review, XXXVI (N.S.) (July 1869), 125.

⁸¹ List, Friedrich, The National System of Political Economy (London, 1885), p. 307 (first published, 1841).Google Scholar Certainly no one has expressed the stimulus theory in terms as impressive as Abraham Lincoln, who said: “The patent system … added the fuel of interest to the fire of genius.…”—“Discoveries, Inventions, and Improvements,” lecture (1859), Complete Works of Abraham Lincoln (New York: Tandy-Thomas, 1905), V, 113.Google Scholar

⁸² J. R. McCulloch, “Patent,” A Dictionary of Commerce and Commercial Navigation, p. 881. The most famous statement of the incentive theory of patents for inventions is Bentham's: “With respect to a great number of inventions in the arts, an exclusive privilege is absolutely necessary, in order that what is sown may be reaped. In new inventions, protection against imitators is not less necessary than in established manufactures protection against thieves. He who has no hope that he shall reap, will not take the trouble to sow.”—“A Manual of Political Economy,” Works, ed. Bowring, III, 71.

³³ Rodriguez, in Beaulieu, De, “Discussion sur la propriété des inventions,” Journal des économistes, XXXIV (2d Ser.) (1862), 82.Google Scholar

³⁴ Armstrong, Sir William, opening address of the president, Report of the 33rd Meeting of the British Association for the Advancement of Science, held at Newcastle in 1863 (London, 1864), p. lii.Google Scholar

³⁵ Macfie, The Patent Question under Free Trade, p. 29.

³⁶ “Whether the public is benefited or taxed by the granting to inventors a monopoly of their inventions by letters patent? The lawyer declares the public is taxed …. The manufacturer takes the same view …. But on the other side, the political economists … declare that great benefits accrue to the public.”—Dircks, Henry, Inventors and Inventions (London, 1867), p. 5. Dircks was a lawyer; apparently he had noticed only the views of economists of Bentham's and Mill's persuasion. The voices of the opposition may have failed to come to his attention because economists in England at that time did not have a professional organ for their publications. French economists had had the Journal des économistes since 1841. In Germany there were two economic journals in the eighteen sixties, and a third was started in the seventies. Also Spain, Holland, and Belgium had economic periodicals. In England the economists' discussions of timely questions had to appear in nonprofessional or nonspecialized magazines or in individual pamphlets.Google Scholar

⁸⁷ Bentham, “A Manual of Political Economy,” Works, ed. Bowring, III, 71.

⁸⁸ “One of the assertions of the patent advocates is that they have the effect of stimulating inventions. This is at least dubious. What is stimulated … is the desire, on the part of a large number of people, to obtain a patent to get rich. They rack their brains to find a pretext for a patent. God knows how often these pretexts are in vain!”—Chevalier, Lcs brevets d'invevtion, p. 88.

⁸⁹ “They [patents] do not promote inventive activity, for they merely steer it into uneconomic channels,—they are injurious to the progress of production.”—Prince-Smith, “Ueber Patente für Erfindungen,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, III, 161.

⁹⁰ “… a few great firms in any branch of business, buying up … any new patent applicable to their business, and prepared to fight for it, could so hamper other competitors as to secure a practical monopoly.” Speech of the Right Hon. Lord Stanley, M.P., in Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions, p. 112.

⁹¹ The Economist, February 1, 1851, pp. 114–15.

⁹² Cf. Bénard, T.-N., “Les Inventions, sont-elles une propriété?”, Journal des économistes, XI (3d Ser.) (1868), 53.Google Scholar

⁹³ “… it commonly happened that half-a-dozen men who were competing … were upon the track of the same discovery. Each of these … would probably have hit upon the invention which was wanted, independently …. But the first who hit upon it, and who took out a patent for it, was thereby entitled to exclude the general public and competitors from the use of that which, if he had never existed, they would probably have hit upon within a few weeks.”—Lord Stanley, in Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions, p. 113.

⁹⁴ The Economist, June 5, 1869, p. 656.

⁹⁵ “No patent brings its holder any immediate pecuniary right. He can only sue people who infringe his patent, and the costliness of patent suits is such that he is seldom able to protect himself. To make the property worth anything, a capitalist must take it up; but the capitalist, in doing so, stipulates for the lion's share of the profit Probably in ninety-nine cases out ot a hundred the reward was obtained by such speculators, and not by inventors.”—The Spectator, June 5, 1869. These observations reflect a House of Commons debate of May 28, 1869.

⁹⁶ Rogers held that inventors as a group would fare better without a patent system and that “the claim urged upon the public is a fiction in which the nominal plaintiff is the inventor, but the real one is a speculative capitalist.”—Rogers, , “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London, XXVI (1863), 133.Google Scholar

⁹⁷ Nevertheless, it was said that patents “are not required as an inducement either to inventors or capitalists, and the reason of the law fails.”—The Economist, June 5, 1869, p. 657.

⁹⁸ All these points were contained in the exposition of the social-contract theory of patent protection in De Bouffler's report to the French National Assembly in 1790. He said: “As long as an inventor has not disclosed his secret, he is in full control and nothing can prevent him from keeping it concealed …. He is free to enter into a contract about it with society, just as society is free to contract with him.”. Quoted from Renouard, Traité des brevets d'invention, p. 90. This contract theory was vigorously defended by the French economist, Louis Wolowski, in 1869: “The patent constitutes a genuine contract between society and inventor; if society grants him a temporary guaranty, he discloses the secret which he could have guarded: quid pro quo, this is the very principle of equity.”—Annales de la Société d'Economic Politique, VIII (1869–70), 126.

⁹⁹ The Economist, July 26, 1851, p. 182.

¹⁰⁰ Thus, McCulloch wrote: “… it would plainly be for the interest of every one who made a discovery, to endeavour, if possible, to conceal it. And notwithstanding the difficulties in the way of concealment, they are not insuperable; and it is believed that several important inventions have been lost, from the secret dying with their authors.”—McCulloch, “Patent,” A Dictionary of Commerce and Commercial Navigation, II, 274.

¹⁰¹ Rogers, , “On the Rationale and Working of the Patent Laws,” Journal of the Statistical Society of London. XXVI (1863), 128.Google Scholar He adds (p. 134): “No one can call that a fair bargain which is voluntary on one side, and involuntary on the other.”

¹⁰² Rentzsch, “Geistiges Eigenthum,” Handwörterbuch der Volkswirtschaft. p. 629.

¹⁰³ Similarly also Böhmert, Die Erfindungspatente, pp. 67 ff.

¹⁰⁴ Prince-Smith, “Ueber Patente für Erfindungen,” Vierteljahrschrift für Volkswirthschaft und Kulturgeschichte, III, 160.

¹⁰⁵ Westminster Review, XXVI (N.S.) (October 1864), 355. The article, like all others in that journal, is unsigned. But the occupation of the writer can be easily detected. For he proposes reforms of the patent laws, including the following: that the term of the patent be lengthened to twenty-one years, that solicitors be admitted as patent attorneys only upon special examination and registration, and “that no restriction be imposed as to the fees they may charge for services rendered to their clients.”—Ibid., p. 357.

¹⁰⁶ Kohler, Joseph, Handbuch des dcutschen Patentrechtes in rechtsvergleichender Darstellung (Mannheim: Bensheimer, 1900), p. 30.Google Scholar